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Released: March 18, 2013

Federal Communications Commission

DA 13-423

Before the

Federal Communications Commission

Washington, D.C. 20554

)
File No.: EB-10-SE-030
In the Matter of
)
)
Acct. No.: 201332100009
Kustom Musical Amplification, Inc., d/b/a
)
Hanser Music Group
)
FRN: 0022521389

ORDER

Adopted: March 15, 2013

Released: March 18, 2013

By the Chief, Enforcement Bureau:
1.
In this Order, we adopt the attached Consent Decree entered into between the
Enforcement Bureau (Bureau) of the Federal Communications Commission (Commission) and Kustom
Musical Amplification, Inc., d/b/a Hanser Music Group (KMA). The Consent Decree resolves and
terminates the Bureau’s investigation into KMA’s compliance with Section 302(b) of the
Communications Act of 1934, as amended (Act),1 and Sections 2.803, 2.1203, 2.1204, 2.1205, 15.2l, and
15.105 of the Commission’s rules (Rules)2 pertaining to the marketing of digital radio frequency devices,
including guitar amplifiers, speaker systems, microphones, and footswitches.
2.
The Bureau and KMA have negotiated the Consent Decree that resolves this matter. A
copy of the Consent Decree is attached hereto and incorporated herein by reference.
3.
After reviewing the terms of the Consent Decree and evaluating the facts before us, we
find that the public interest would be served by adopting the Consent Decree and terminating the
investigation.
4.
In the absence of material new evidence relating to this matter, we conclude that our
investigation raises no substantial or material questions of fact as to whether KMA possesses the basic
qualifications, including those related to character, to hold or obtain any Commission license or
authorization.
5.
Accordingly,

IT IS ORDERED

that, pursuant to Sections 4(i), 4(j), and 503(b) of the
Act,3 and Sections 0.111 and 0.311 of the Rules,4 the Consent Decree attached to this Order

IS
ADOPTED.



1 47 U.S.C. § 302a(b).
2 47 C.F.R. §§ 2.803, 2.1203, 2.1204, 2.1205, 15.21, 15.105.
3 47 U.S.C. §§ 154(i), 154(j), 503(b).
4 47 C.F.R. §§ 0.111, 0.311.

Federal Communications Commission

DA 13-423

6.

IT IS FURTHER ORDERED

that the above-captioned investigation

IS

TERMINATED

.
7.

IT IS FURTHER ORDERED

that a copy of this Order and Consent Decree shall be
sent by first class mail and certified mail, return receipt requested, to Robert Imhoff, President, Kustom
Musical Amplification, Inc., d/b/a Hanser Music Group, 3015 Kustom Drive, Hebron, KY 41048, and to
Steven C. Coffaro, Esq., Keating Muething & Klekamp PLL, Counsel for Kustom Musical Amplification,
Inc., d/b/a Hanser Music Group, One East 4th Street, Suite 1400, Cincinnati, OH 45202.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
2

Federal Communications Commission

DA 13-423

Before the

Federal Communications Commission

Washington, DC 20554

)
File No.: EB-10-SE-030
In the Matter of
)
)
Acct. No.: 201332100009
Kustom Musical Amplification, Inc., d/b/a
)
Hanser Music Group
)
FRN: 0022521389

CONSENT DECREE

The Enforcement Bureau of the Federal Communications Commission and Kustom Musical
Amplification, Inc., d/b/a Hanser Music Group, by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau’s investigation into possible
violations of Section 302(b) of the Communications Act of 1934, as amended,1 and Sections 2.803,
2.1203, 2.1204, 2.1205, 15.21, and 15.105 of the Commission’s rules2 pertaining to the marketing of
digital radio frequency devices, including guitar amplifiers, speaker systems, microphones, and
footswitches.

I.

DEFINITIONS

1.
For the purposes of this Consent Decree, the following definitions shall apply:
(a)
“Act” means the Communications Act of 1934, as amended, 47 U.S.C. § 151 et
seq.

(b)
“Adopting Order” means an order of the Bureau adopting the terms of this
Consent Decree without change, addition, deletion, or modification.
(c)
“Bureau” means the Enforcement Bureau of the Federal Communications
Commission.
(d)
“Communications Laws” means collectively, the Act, the Rules, and the
published and promulgated orders and decisions of the Commission to which
KMA is subject by virtue of its business activities, including but not limited to,
the Equipment Marketing Rules.
(e)
“Commission” and “FCC” mean the Federal Communications Commission and
all of its bureaus and offices.
(f)
“Compliance Plan” means the compliance obligations, program, and procedures
described in this Consent Degree at paragraph 10.
(g)
“Covered Employees” means all employees and agents of KMA who perform, or
supervise, oversee, or manage the performance of, duties that relate to KMA’s
responsibilities under the Equipment Marketing Rules.


1 47 U.S.C. § 302a(b).
2 47 C.F.R. §§ 2.803, 2.1203, 2.1204, 2.1205, 15.21, 15.105.

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DA 13-423

(h)
“Digital Device” means an unintentional radiator device or system as defined in
Section 15.3(k) of the Rules.3
(i)
“Effective Date” means the date on which the Bureau releases the Adopting
Order.
(j)
“Equipment Marketing Rules” means Section 302(b) of the Act4 and Sections
2.803, 2.1203, 2.1204, 2.1205, 15.19, 15.21, and 15.105 of the Rules5 and other
Communications Laws governing the marketing of radio frequency devices
within the United States and its territories.
(k)
“Investigation” means the investigation commenced by the Bureau’s September
10, 2010 letter of inquiry6 regarding whether the marketing of certain Digital
Devices by KMA complies with the Equipment Marketing Rules.
(l)
“KMA” means Kustom Musical Amplification, Inc., d/b/a Hanser Music Group,
and its predecessors-in-interest and successors-in-interest.
(m)
“Operating Procedures” means the standard, internal operating procedures and
compliance policies established by KMA to implement the Compliance Plan.
(n)
“Parties” means KMA and the Bureau, each of which is a “Party.”
(o)
“Rules” means the Commission’s regulations found in Title 47 of the Code of
Federal Regulations.

II.

BACKGROUND

2.
Pursuant to Section 302(b) of the Act7 and Sections 2.803, 15.19, 15.21, and 15.105 of
the Rules,8 certain Digital Devices may not be marketed in the United States unless the devices comply
with the applicable technical standards as well as the administrative requirements relating to equipment
labeling and consumer disclosure. Section 2.803(e)(4) of the Rules defines “marketing” as the “sale or
lease, or offering for sale or lease, including advertising for sale or lease, or importation, shipment or
distribution for the purpose of selling or leasing or offering for sale or lease.”9
3.
Pursuant to Sections 2.1203, 2.1204, and 2.1205 of the Rules, a Digital Device may not
be imported into the United States unless the importer, ultimate consignee, or customs broker, files with
the United States Customs and Border Protection an FCC Form 740 (or the electronic equivalent thereof)
declaring that the device meets one of the import conditions set forth in Section 2.1204 of the Rules.10
KMA markets Digital Devices such as guitar amplifiers, speaker systems, microphones and footswitches.


3 Id. § 15.3(k).
4 47 U.S.C. § 302a(b).
5 47 C.F.R. §§ 2.803, 2.1203, 2.1204, 2.1205, 15.19, 15.21, 15.105.
6 See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, to Kustom
Musical Amplification, Inc. (Sept. 10, 2010) (on file in EB-10-SE-030).
7 See 47 U.S.C. § 302a(b).
8 See 47 C.F.R. §§ 2.803, 15.19, 15.21, 15.105.
9 Id. § 2.803(e)(4).
10 See id. §§ 2.1203, 2.1204, 2.1205.
2

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DA 13-423

These Digital Devices are unintentional radiators subject to authorization via the Commission’s
equipment verification procedures.11
4.
On September 10, 2010, the Bureau’s Spectrum Enforcement Division (Division) issued
a letter of inquiry (LOI) to KMA, directing KMA to submit a sworn written response to a series of
questions relating to KMA’s marketing of Digital Devices.12 KMA responded to the LOI on October 15,
2010 (LOI Response).13 In its LOI Response, KMA provided information and documents relating to the
Digital Devices marketed by the company.14 In response to a subsequent inquiry from the Division,15
KMA provided information relating to its obligation to include a consumer disclosure statement in the
user manual of certain Digital Devices marketed by the company.16 KMA also provided information
related to its importation of certain Digital Devices and its obligation to file FCC Form 740s with the
United States Customs and Border Protection in connection with the importation of such Digital
Devices.17 The Bureau and KMA executed tolling agreements to toll the statute of limitations.18

III.

TERMS OF AGREEMENT

5.

Adopting Order

. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau by incorporation of such provisions by reference in the Adopting
Order.
6.

Jurisdiction

. KMA agrees that the Bureau has jurisdiction over it and the matters
contained in this Consent Decree and that the Bureau has the authority to enter into and adopt this
Consent Decree.
7.

Effective Date; Violations

. The Parties agree that this Consent Decree shall become
effective on the Effective Date as defined herein. As of the Effective Date, the Adopting Order and this
Consent Decree shall have the same force and effect as any other order of the Commission. Any violation
of the Adopting Order or of the terms of this Consent Decree shall constitute a separate violation of a
Commission order, entitling the Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.
8.

Termination of Investigation

. In express reliance on the covenants and representations
in this Consent Decree and to avoid further expenditure of public resources, the Bureau agrees to


11 Id. § 15.101.
12 See supra note 6.
13 See Letter from Robert Imhoff, President, Hanser Music Group, to Katherine Power, Attorney, Spectrum
Enforcement Division, FCC Enforcement Bureau (Oct. 15, 2010) (on file in EB-10-SE-030). Hanser Music Group
is a trade name for Kustom Musical Amplification, Inc.
14 See id.
15 See Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, to
Robert Imhoff, President, Hanser Music Group (May 2, 2011) (on file in EB-10-SE-030).
16 See Letter from Robert Imhoff, President, Hanser Music Group, to Katherine Power, Attorney, Spectrum
Enforcement Division, FCC Enforcement Bureau at 1 (May 16, 2011) (on file in EB-10-SE-030).
17 See E-mail from Steven C. Coffaro, Keating Muething & Klekamp PLL, Counsel to Hanser Music Group, to
Katherine Power, Spectrum Enforcement Division, FCC Enforcement Bureau (Nov. 13, 2012, 11:06 EDT) (on file
in EB-10-SE-030).
18 See, e.g., Tolling Agreement Extension, File No. EB-10-SE-030, executed by and between John D. Poutasse,
Chief, Spectrum Enforcement Division, FCC Enforcement Bureau, and Steven C. Coffaro, Keating Muething &
Klekamp PLL, Counsel to Hanser Music Group (July 17, 2012) (on file in EB-10-SE-030).
3

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DA 13-423

terminate the Investigation. In consideration for the termination of the Investigation, KMA agrees to the
terms, conditions, and procedures contained herein. The Bureau further agrees that in the absence of new
material evidence, the Bureau will not use the facts developed in the Investigation through the Effective
Date, or the existence of this Consent Decree, to institute on its own motion any new proceeding, formal
or informal, or take any action on its own motion against KMA concerning the matters that were the
subject of the Investigation. The Bureau also agrees that in the absence of new material evidence it will
not use the facts developed in the Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal or informal, or take any action on
its own motion against KMA with respect to KMA’s basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission licenses or authorizations.
9.

Compliance Officer

. Within thirty (30) calendar days after the Effective Date, KMA
shall designate a senior corporate manager with the requisite corporate and organizational authority to
serve as Compliance Officer and to discharge the duties set forth below. The Compliance Officer shall be
responsible for developing, implementing, and administering the Compliance Plan and ensuring that
KMA complies with the terms and conditions of the Compliance Plan and this Consent Decree. In
addition to the general knowledge of the Communications Laws necessary to discharge his/her duties
under this Consent Decree, the Compliance Officer shall have specific knowledge of the Equipment
Marketing Rules prior to assuming his/her duties.
10.

Compliance Plan

. For purposes of settling the matters set forth herein, KMA agrees that
it shall within sixty (60) calendar days after the Effective Date, develop and implement a Compliance
Plan designed to ensure future compliance with the Communications Laws and with the terms and
conditions of this Consent Decree. With respect to the Equipment Marketing Rules, KMA shall
implement the following procedures:
(a)

Operating Procedures on Equipment Marketing

. Within sixty (60) calendar
days after the Effective Date, KMA shall establish Operating Procedures that all
Covered Employees must follow to help ensure KMA’s compliance with the
Equipment Marketing Rules. KMA’s Operating Procedures shall include internal
procedures and policies specifically designed to ensure that (i) prior to the initiation
of marketing (as such term is defined in Section 2.803 of the Rules19), all Digital
Devices and other radio frequency devices to be marketed by KMA comply with
applicable technical standards, have been properly authorized (via the certification,
verification, or declaration of conformity procedures, as applicable), and comply
with the applicable administrative requirements relating to equipment labeling and
consumer disclosure; and (ii) KMA complies with the requirements of Sections
2.1203, 2.1204 and 2.1205 of the Rules relating to the importation and entry of
Digital Devices into the United States, including the filing with the United States
Customs and Border Protection of an FCC Form 740 (or the electronic equivalent
thereof) that accurately identifies the importation condition(s) satisfied for each
such importation.20
(b)

Compliance Manual

. Within sixty (60) calendar days after the Effective Date, the
Compliance Officer shall develop and distribute a Compliance Manual to all
Covered Employees. The Compliance Manual shall explain the Equipment
Marketing Rules, including the obligations to secure an equipment authorization
from the FCC prior to marketing a Digital Device and to meet all FCC
requirements for the importation and entry of such Digital Device into the United


19 See supra para. 2.
20 See 47 C.F.R. §§ 2.1203, 2.1204, 2.1205.
4

Federal Communications Commission

DA 13-423

States, and set forth the Operating Procedures that Covered Employees shall follow
to help ensure KMA’s compliance with the Equipment Marketing Rules. KMA
shall periodically review and revise the Compliance Manual as necessary to ensure
that the information set forth therein remains current and complete. KMA shall
distribute any revisions to the Compliance Manual promptly to all Covered
Employees.
(c)

Compliance Training Program

. KMA shall establish and implement a
Compliance Training Program on compliance with the Equipment Marketing Rules
and the Operating Procedures. As part of the Compliance Training Program,
Covered Employees shall be advised of KMA’s obligation to report any
noncompliance with the Equipment Marketing Rules under paragraph 11 of this
Consent Decree and shall be instructed on how to disclose noncompliance to the
Compliance Officer. All Covered Employees shall be trained pursuant to the
Compliance Training Program within sixty (60) calendar days after the Effective
Date, except that any person who becomes a Covered Employee at any time after
the Effective Date shall be trained within thirty (30) calendar days after the date
such person becomes a Covered Employee. KMA shall repeat the compliance
training on an annual basis, and shall periodically review and revise the
Compliance Training Program as necessary to ensure that it remains current and
complete and to enhance its effectiveness.
11.

Reporting Noncompliance

. KMA shall report any noncompliance with the Equipment
Marketing Rules and with the terms and conditions of this Consent Decree within fifteen (15) calendar
days after discovery of such noncompliance. Such reports shall include a detailed explanation of (i) each
instance of noncompliance; (ii) the steps that KMA has taken or will take to remedy such noncompliance;
(iii) the schedule on which such remedial actions will be taken; and (iv) the steps that KMA has taken or
will take to prevent the recurrence of any such noncompliance. All reports of noncompliance shall be
submitted to the Chief, Spectrum Enforcement Division, Enforcement Bureau, Federal Communications
Commission, Room 3-C366, 445 12th Street, S.W., Washington, DC 20554, with a copy submitted
electronically to Paul.Noone at Paul.Noone@fcc.gov and to Pamera Hairston at
Pamera.Hairston@fcc.gov.
12.

Compliance Reports

. KMA shall file Compliance Reports with the Commission ninety
(90) calendar days after the Effective Date, twelve (12) months after the Effective Date, and twenty-four
(24) months after the Effective Date.
(a)
Each compliance report shall include a detailed description of KMA’s efforts
during the relevant period to comply with the terms and conditions of this Consent
Decree and the Equipment Marketing Rules. In addition, each Compliance Report
shall include a certification by the Compliance Officer, as an agent of and on behalf
of KMA, stating that the Compliance Officer has personal knowledge that KMA (i)
has established and implemented the Compliance Plan; (ii) has utilized the
Operating Procedures since the implementation of the Compliance Plan; and (iii) is
not aware of any instances of noncompliance with the terms and conditions of this
Consent Decree, including the reporting obligations set forth in paragraph 11
hereof.
(b)
The Compliance Officer’s certification shall be accompanied by a statement
explaining the basis for such certification and must comply with Section 1.16 of the
5

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DA 13-423

Rules21 and be subscribed to as true under penalty of perjury in substantially the
form set forth therein.
(c)
If the Compliance Officer cannot provide the requisite certification, the
Compliance Officer, as an agent of and on behalf of KMA, shall provide the
Commission with a detailed explanation of the reason(s) why and describe fully (i)
each instance of noncompliance; (ii) the steps that KMA has taken or will take to
remedy such noncompliance, including the schedule on which proposed remedial
actions will be taken; and (iii) the steps that KMA has taken or will take to prevent
the recurrence of any such noncompliance, including the schedule on which such
preventive action will be taken.
(d)
All Compliance Reports shall be submitted to the Chief, Spectrum Enforcement
Division, Enforcement Bureau, Federal Communications Commission, 445 12th
Street, S.W., Washington, DC 20554, with a copy submitted electronically to Paul
Noone at Paul.Noone@fcc.gov and to Pamera Hairston at
Pamera.Hairston@fcc.gov.
13.

Termination Date

. Unless stated otherwise, the obligations set forth in paragraphs 9
through 12 of this Consent Decree shall expire twenty-four (24) months after the Effective Date.
14.

Voluntary Contribution

. KMA agrees that it will make a voluntary contribution to the
United States Treasury in the amount of fourteen thousand five hundred dollars ($14,500) dollars within
thirty (30) calendar days after the Effective Date. KMA shall also send electronic notification of payment
to Paul Noone at Paul.Noone@fcc.gov, Pamera Hairston at Pamera.Hairston@fcc.gov, and to Samantha
Peoples at Sam.Peoples@fcc.gov on the date said payment is made. The payment must be made by check
or similar instrument, wire transfer, or credit card, and must include the NAL/Account number and FRN
referenced above. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice)
must be submitted.22 When completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below
are additional instructions you should follow based on the form of payment you select:
Ÿ
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
Ÿ
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.
Ÿ
Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.


21 47 C.F.R. § 1.16.
22 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
6

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DA 13-423

If you have questions regarding payment procedures, please contact the Financial Operations Group Help
Desk by phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
15.

Waivers

. KMA waives any and all rights it may have to seek administrative or judicial
reconsideration, review, appeal, or stay, or to otherwise challenge or contest the validity of this Consent
Decree and the Adopting Order, provided the Bureau issues an Adopting Order as defined herein. KMA
shall retain the right to challenge Commission interpretation of the Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of the Commission) brings a judicial
action to enforce the terms of the Adopting Order, neither KMA nor the Commission shall contest the
validity of the Consent Decree or of the Adopting Order, and KMA shall waive any statutory right to a
trial de novo. KMA hereby agrees to waive any claims it may have under the Equal Access to Justice
Act23 relating to the matters addressed in this Consent Decree.
16.

Invalidity

. In the event that this Consent Decree in its entirety is rendered invalid by any
court of competent jurisdiction, it shall become null and void and may not be used in any manner in any
legal proceeding.
17.

Subsequent Rule or Order

. The Parties agree that if any provision of the Consent
Decree conflicts with any subsequent Rule or order adopted by the Commission (except an order
specifically intended to revise the terms of this Consent Decree to which KMA does not expressly
consent) that provision will be superseded by such Rule or Commission order.
18.

Successors and Assigns

. KMA agrees that the provisions of this Consent Decree shall
be binding on its successors, assigns, and transferees.
19.

Final Settlement

. Based on the Investigation, the Bureau contends that it may have
certain claims against KMA related to possible violations of Section 302(b) of the Act and Sections
2.803, 2.1203, 2.1204, 2.1205, 15.21, and 15.105 of the Rules. KMA neither admits nor denies any such
violations, and the Commission does not concede or otherwise represent that its claims are not well
founded. The Parties agree and acknowledge that this Consent Decree shall constitute a final settlement
between the Parties with respect to the Investigation. The Parties also agree that this Consent Decree does
not constitute either an adjudication on the merits or a factual or legal finding or determination regarding
any compliance or noncompliance with the Communications Laws.
20.

Modifications

. This Consent Decree cannot be modified without the written consent of
both Parties.
21.

Paragraph Headings

. The headings of the paragraphs in this Consent Decree are
inserted for convenience only and are not intended to affect the meaning or interpretation of this Consent
Decree.
22.

Authorized Representative

. The individual signing this Consent Decree on behalf of
KMA represents and warrants that he is authorized by KMA to execute this Consent Decree and to bind
KMA to the obligations set forth herein. The FCC signatory represents that he is signing this Consent
Decree in his official capacity and that he is authorized to execute this Consent Decree.


23 Equal Access to Justice Act, Pub L. No. 96-481, 94 Stat. 2325 (1980) (codified at 5 U.S.C. § 504); see also
47 C.F.R. §§ 1.1501-1.1530.
7

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23.

Counterparts

. This Consent Decree may be signed in any number of counterparts
(including by facsimile), each of which, when executed and delivered, shall be an original, and all of
which counterparts together shall constitute one and the same fully executed instrument.
________________________________
John D. Poutasse
Chief, Spectrum Enforcement Division
Enforcement Bureau
_______________________________
Date
_______________________________
John F. Hanser III
President, Chief Executive Officer
Kustom Musical Amplification, Inc.,
d/b/a Hanser Music Group
______________________________
Date
8

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